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News

Nassau County, Long Island and Downstate New York Law Firm

June 28, 2017

Montfort, Healy successfully moves to stay SUM arbitration under the terms of a commercial auto policy

Montfort, Healy was successful in arguing to stay a supplementary underinsured motorist (SUM) coverage arbitration. The insured vehicle in this case was owned by a corporation. The president and sole shareholder of the corporation was injured in a two-car collision while a passenger in another vehicle owned and operated by a colleague. He claimed that, when the accident happened, he was being driven to a dinner meeting where he intended to discuss one of his corporation's computer projects. After settling with the carrier for the adverse vehicle, he demanded SUM arbitration with the insurer of the vehicle owned by his corporation. Montfort, Healy, in representing the corporation's insurance carrier, moved to stay arbitration on the ground that the president of the corporation did not qualify as an insured under the terms of its policy.

The issue in the case was whether the insurer of the corporation's petition to stay the proceedings was timely. While the corporation's carrier did not deny the petition to stay the proceeding was outside of the 20-day statutory period under CPLR § 7503(c), their counsel, Montfort Healy, instead argued that the statutory requirement does not apply if there is no agreement between the parties to arbitrate. The opposition argued that, since the policy had an arbitration provision and the injured party is the president and sole shareholder of the corporation, then they are bound by the arbitration agreement.

In relying on similar cases, the Court recognized that whether the corporation's insurer is bound by the 20-day filing period relies on whether the president of the corporation is "insured" as per the policy.

The policy in question read as follows:

Any person while acting in the scope of that person's duties for you, except with respect to the use and operation by such person of a motor vehicle not covered under this policy, where such person is: (a) your employee and you are a fire department; (b) your member and you are a fire company, as defined in General Municipal Law section 1000; (c) your employee and you are an ambulance service, as defined in Public Health Law section 3001; or (d) your member and you are a voluntary ambulance service, as defined in Public Health Law section 3001.

The question for the court then became the scope of the "exception" in the part of the clause beginning with the word "except." The court had to decide whether the scope of the exception was the entire remaining portion of the clause, or if the "exception" is limited to the phrase separated by the commas, namely "except with respect to the use and operation by such person of a motor vehicle not covered under this policy."

In interpreting the clause, the court determined that the presence of the commas before "except" and after "policy" were simply grammatical borders to the clause. Therefore, the president must also show that he is one of the people as described in (a) through (d) in order to be "insured" under the policy. Because he failed to make a showing, the Court found he is not an insured as defined by the policy and thus, there is no agreement to arbitrate between the parties. Therefore, the application was granted, and the Court permanently stayed the arbitration.

To read a full copy of the decision click here.

 

June 21, 2017

Montfort, Healy Successful in Arguing Motor Vehicle Accident

Montfort, Healy was successful in arguing that a jury's verdict rendered in a motor vehicle accident case should stand. The plaintiff alleged that she sustained serious injuries as a result of a motor vehicle accident. The jury returned a unanimous verdict finding that the motor vehicle accident was not a substantial factor in causing her alleged injuries.

The plaintiff moved pursuant to CPLR § 4404(a) to set aside the verdict and for a judgment as a matter of law. After the initial request was denied, the plaintiff moved for leave to reargue. Upon reargument, the Suffolk County trial court granted her motion. The defendants appealed.

On appeal, the Second Department recognized that a motion pursuant to CPLR § 4404(a) may only be granted "where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to conclusions reached by the jury on the basis of the evidence presented at trial." The Court cited Cohen v Hallmark Cards, 45 NY2d 493, 499; Vittiglio v Gaurino, 100 AD3d 987, 987-988. Vittiglio v Gaurino, decided by the Second Department in 2012, was also argued by Montfort, Healy.

Montfort, Healy contended that the expert testimony of the physicians who examined the plaintiff on behalf of the defendants could lead the jury to believe the claimed injuries were solely the result of degenerative processes, and therefore were not the result of trauma. Upon review, the Second Department agreed with Montfort, Healy and held that the Supreme Court's grant of plaintiff's motion under CPLR § 4404(a) was improper. Accordingly, the Second Department reversed the trial court order and reinstated the jury's verdict.

To read the full text of the decision click here.

 

May 23, 2017

Montfort, Healy Successfully Dismisses Complaint on Appeal

Montfort, Healy was successful in the appeal of a 2016 Queens County Supreme Court decision. The case involved a 2007 motor vehicle accident that injured one plaintiff and led to the death of another. The action was commenced in August 2010, and the defendant was properly served in December of that year. Following service, the defendant did not answer or appear in the action. The plaintiffs did not seek a default judgment.

In July 2015, the defendant moved, pursuant to CPLR 3215(c), to dismiss the complaint as abandoned. The Queens County Supreme Court denied the defendant's motion in December of that year on the ground that CPLR 321(c) had imposed an automatic stay due to the death of the plaintiffs' attorney in May 2015.

When a new attorney for the plaintiffs appeared in the action, the defendant served an answer and moved to reargue and renew the prior motion for dismissal under CPRL 3215(c). After granting leave to renew and reargue, the Supreme Court issued an order on June 20, 2016 adhering to its determination in the original order.

In reviewing that order under CPLR 3215(c), the Second Department recognized that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed" (see Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749).

The Second Department held that the plaintiffs did not offer a reasonable excuse for their failure to enter a default judgment. While the death of the plaintiff's former attorney may possibly have been a reasonable excuse, it was not a persuasive argument in this case because the attorney died almost three-and-half years after the one-year statutory period within which to seek a default judgment had elapsed.

The plaintiff also contended that, because the defendant served an answer after his original motion was denied, he waived his rights to seek dismissal under CPLR 3215(c). Relying on prior cases directly on point, the Second Department found the argument to be unavailing. The Second Department concluded that upon reargument and renewal, the Supreme Court should have granted the defendant's motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c).

To read the full decision, click here.

 

May 23, 2017

Montfort, Healy Successfully Argues that a Bar is Not Entitled to Summary Judgment under the Dram Shop Act

Montfort, Healy was successful in arguing that a bar was not entitled to summary judgment under General Obligations Law § 11-101, commonly known as the Dram Shop Act. The firm represented the driver of a vehicle that overturned and seriously injured the plaintiff. After the accident, the driver was found to have a blood alcohol content of .18%.

In moving for summary judgment dismissing the Dram Shop Act, the bar submitted unsigned transcripts of two witnesses who spent several hours with the driver at the bar before the accident. While the transcripts contained testimony that the driver was not visibly intoxicated when he left the bar, they were unsigned, and the Supreme Court denied the motion. The bar moved for leave to renew, and submitted signed copies of the transcripts. Finding that the missing signatures resulted from law office failure, the trial court granted leave to renew the motion for summary judgment and, upon renewal, dismissed the Dram Shop Act cause of action.

On appeal, the Second Department agreed that the failure to provide signed copies of the transcripts constituted "law office failure" and held that the Supreme Court properly granted renewal. However, the Second Department modified the order of the trial court by denying summary judgment.

The court stated that "to establish a cause of action under the Dram Shop Act, a plaintiff is required to prove that the defendant sold alcohol to a person who was visibly intoxicated at the time of the sale, and that the sale of that alcohol bore some reasonable or practical connection to the resulting damages." (Pinilla v City of New York, 136 AD3d 774, 776-777; see General Obligations Law § 11-101[1]). While the annexed deposition transcripts, along with other testimony, met the bar's prima facie burden to establish the driver was not visibly intoxicated while a patron at the bar, the opposition provided by the plaintiff raised a triable issue of fact sufficient to defeat summary judgment.

The plaintiff provided a transcript of the driver's plea of guilty to aggravated driving while intoxicated, along with other related crimes. At his plea, the driver admitted he remembered drinking "a few mixed drinks" before the accident, and further admitted that his blood alcohol content after the accident was .18%. In addition, the police report revealed that, at the time of arrest, the driver appeared to be intoxicated. While the bar argued that the police report should not be admissible, the bar had submitted the report with its reply papers on the original motion. Therefore, it waived any objection to its admissibility.

While viewing the facts in the light most favorable to the plaintiff, the Court found that the plaintiff raised a triable issue of fact as to whether the defendant was visibly intoxicated while he was a patron at the bar. The Second Department concluded by stating the trial court properly granted renewal, but upon renewal, the defendant bar's motion for summary judgment should have been denied.

To read the full decision, click here.

 

February 6, 2017

Montfort, Healy, McGuire & Salley LLP Wins Motion for Summary Judgment on Appeal

Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley LLP was successful in representing a housing development corporation in a trip and fall case in New York's Appellate Division, First Department.

The action arose out of a trip and fall accident in 2012, when an imperfection in the sidewalk allegedly caused the plaintiff to trip and sustain injuries. Montfort, Healy, McGuire & Salley LLP appeared in the action representing a housing development corporation that owned property in the neighborhood where the plaintiff tripped. Within four months after appearing in the action, the firm filed a motion for summary judgment, arguing that the housing development had no relationship to the sidewalk at issue, and furthermore, it did not engage in any act that might have caused the alleged imperfection.

The trial court denied the firm's motion as untimely, even though the housing development was not impleaded into the action until four months after the note of issue was filed. A motion filed by a co-defendant to strike the note of issue and allow additional discovery was also denied.

The First Department held that the trial court should have considered the motion for summary judgment on the merits. The motion court erred when it failed to extend the time within which to file the motion because "good cause" existed to excuse any delay in filing the motion. The First Department concluded by issuing an order that granted the motion and dismissed the action as against the housing development corporation.

The text of the decision can be read here.

 

December 28, 2016

Montfort, Healy, McGuire & Salley LLP Successfully Defends Personal Injury Action on Appeal

Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley LLP successfully defended a New York automobile accident claim in New York Supreme Court's Appellate Division, Second Department.

After suffering injuries in an automobile accident in Queens, New York, the plaintiff, was authorized by his insurance company to settle his claim against the tortfeasor. After settling his claim, the plaintiff commenced an action against the insurance company to recover damages for personal injury pursuant to the under-insured endorsement of his policy with the company. The action led to a jury trial at which the insurance company conceded liability. Therefore, the jury was asked to determine only whether the plaintiff met the serious injury threshold as defined by insurance law to obtain damages. The jury found that the plaintiff did not sustain an injury under the statutory threshold required for damages. After the decision, the plaintiff moved to set aside the verdict as contrary to the weight of the evidence and for a new trial. The motion was denied, and a judgment was entered in favor of the insurance company.

The Plaintiff appealed the decision stating that the Supreme Court incorrectly denied the motion to set the verdict aside. In representing the insurance company Mr. Neumann argued that the Supreme Court correctly denied the plaintiff's motion, and this was evidenced by the fact the plaintiff did not object to the charge as given, or to the verdict sheet. In addition, the Plaintiff did not move for a directed verdict, and therefore they conceded the fact that the question of fact should have been left to the jury. Mr. Neumann further argued that the jury's verdict was not against the weight of the evidence.

The appellate court agreed with Mr. Neumann in holding: "A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence" see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746. The court found that the jury's finding was based on a fair interpretation of the evidence submitted at trial, and therefore affirmed the trial court's decision.

The decision from the Second Department Appellate Division can be found here.

 

November 20, 2016

Firm Attorney Michael K. Chin Successfully Defends Medical Malpractice Claim Against Rehabilitation Center

Claim Determined to be Medical Malpractice not Negligence and thus time barred.

Associate attorney Michael K. Chin of Montfort, Healy, McGuire & Salley was successful in the dismissal of a medical malpractice claim in Nassau County Supreme Court. Representing a major hospital and rehabilitation Center, Mr. Chin argued that the claim against the facility was a medical malpractice claim rather than a negligence claim and thus barred by the two and one half year statute of limitations.

The Plaintiff's action against the rehabilitation facility arose from personal injuries sustained in July 2011 when the Plaintiff fell during a physical therapy session. The Plaintiff asserted a single cause of action for negligence after he claimed that the defendant "failed and omitted to properly supervise the plaintiff to prevent falls...failed and omitted to properly diagnose plaintiff's injuries in a timely manner...and failed and omitted to properly treat plaintiff's injuries in a timely manner." In addition, the plaintiff claimed that the defendant used a lack of care when placing him in a strenuous position likely to cause the injury. Furthermore, the claim stated that the defendant violated New York State Office of Professional Practice Guidelines by allowing an unlicensed aid to provide direct contact with the plaintiff. The claim of negligence carries with it a three-year statute of limitations.

In review of the claims, Montfort, Healy, McGuire & Salley moved to dismiss the action because the cause of action was medical practice and not negligence, and therefore barred by the statute of limitations. In relying on case law, the court had to determine whether the case is medical malpractice or negligence by looking at where the duty of the professional arose from. If the duty of the defendant arose from the physician-patient relationship or is substantially related to medical treatment, then any breach of that duty would give rise to an action of medical malpractice rather than negligence.

The court found that the plaintiff's injury came after he was presented to the rehabilitation facility for services following a knee replacement. The plaintiff alleged that the licensed physical therapist was not in the room, and instead was just her aide. While the defendant disputed this claim, the court found that regardless the question was not a sufficient question of fact to survive the motion to dismiss. The court determined that if the physical therapist left the patient alone in the room with the aide then that would go to the adequacy and supervision of the training of the aide and be related to the medical services.

The court noted that "allegations of inadequacy do not remove or change their roles from that of medical malpractice to simple negligence." (Perkins v. Kearney, 155 AD2d 191). The court concluded that the negligent conduct at bar constituted an integral part of the process of rendering medical treatment to the plaintiff, and thus would constitute a claim for medical malpractice. Therefore, the court dismissed the claim as being time barred by the statute of limitations.

To read the full decision, click here.

 

June 28, 2016

Montfort, Healy, McGuire & Salley LLP Successfully Vacates Default Judgment

Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley LLP successfully vacated a $600,000 default judgment on behalf of a Virginia resident in a personal injury matter.

On November 14, 2013, the defendant, a resident of Virginia, was involved in a motor vehicle accident with another car that was occupied by its driver and one passenger. The driver resided in Georgia, and his passenger resided in Maryland. The complaint did not set forth the state where the accident happened, and no connection to New York was pleaded or established.

The accident happened in Maryland. Nevertheless, the plaintiffs filed their action in the United States District Court, Southern District of New York, where they obtained a default judgment against the defendant and were awarded a judgment in the total amount of $600,000 ($300,000 for each plaintiff as demanded in the complaint).

After it was retained by the Defendant’s insurance company, Montfort, Healy filed a motion to vacate the default judgment and dismiss the complaint on the ground that the Court did not have jurisdiction to hear the matter. The Court (Robert W. Sweet, J.) agreed, holding that: “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties or relations.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S. Ct. 2174, 2181, 85 L. Ed. 2d 528 (1985) (quoting Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 319, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945). Judge Sweet vacated the default judgment and dismissed the complaint for want of personal jurisdiction.

The decision of Judge Sweet was selected for publication by Leagle.com and can be read by clicking here.

 

May 25, 2016

Montfort, Healy, McGuire & Salley Successfully Appeals Case Involving the Scope and Interpretation of an Indemnification Clause

Donald S. Neumann, Michael A. Baranowicz and Christopher T. Cafaro of Montfort, Healy, McGuire & Salley LLP successfully represented a defendant third-party plaintiff-appellant telecommunications company before the New York State Supreme Court, Appellate Division, Second Department. The client sought action against a subcontractor for indemnification for attorneys’ fees in conjunction with the successful dismissal of a personal injury action against the telecom company and its subcontractor.

In the underlying case, the plaintiff-respondent claimed she was injured when her bicycle hit a pothole at an intersection in Queens. She commenced an action to recover damages for personal injuries against the telecom company, among others. Before the accident happened, the company received a street opening permit from the City of New York to do work on the intersection and hired a subcontractor to perform the work. However, no work was actually done at the intersection at issue. The trial court dismissed the action against the telecom company and the subcontractor. However, the subcontractor failed to indemnify the telecom company for its attorneys’ fees, as agreed to in their agreement. The Firm commenced a third-party action on behalf of the telecom company against the subcontractor based on the claims of breach of contract and contractual indemnification.

The contract between the two parties stated that the subcontractor agreed to defend and indemnify the telecom company against “claims” resulting from the subcontractor’s “acts or omissions,” whether such claims “arise[ ] or [are] alleged to arise out of the sole acts or omissions of the [subcontractor] or the concurrent acts or omissions of the [subcontractor] or any indemnified parties.” (see Diudone v. City of New York, 87 AD3d 608; Sand v. City of New York, 83 AD3d 923; Barnes v. New York City Hous. Auth., 43 AD3d 842). The subcontractor argued that, since the work was never performed, it should not be responsible for indemnifying the telecom company for attorneys’ fees. The lower court agreed.

In reversing the lower court, the appellate court found that the “plain and unambiguous terms of the contract did not condition [the subcontractor’s] obligation to indemnify [the telecom company] for attorneys’ fees and costs on a finding of fault.” Thus, the telecom company was entitled to indemnification in defense of the main action, despite the fact that the subcontractor never worked in the area and was not at fault for the accident.

To read the full decision, click here.

 

December 16, 2015

Trial Court Dismisses Complaint Under New York's No Fault Law Based on Plaintiff's Prior Medical History and Grants Summary Judgment in Favor of Client represented by MMHS

Baker v. Verizon

Susan H. Dempsey of Montfort, Healy, McGuire & Salley LLP recently secured summary judgment in favor of a defendant client in a case pending in the New York State Supreme Court in Queens County. The court granted the order on the ground that the plaintiff did not sustain injuries that met the "serious injury threshold requirement" pursuant to Insurance Law §5102(d).

The dispute arose from a motor vehicle accident that occurred in 2013. The plaintiff alleged he sustained injuries including: some requiring surgery; some that decreased his motions; and others that caused strains, sprains, headaches and pain syndrome. Evidence of the plaintiff's prior medical history, however, led to the dismissal of the complaint.

The plaintiff's testimony at his deposition revealed that, at the scene of the accident, an ambulance arrived and he was examined. However, instead of requesting that he be transported to a hospital, the plaintiff drove himself to a pain management facility where he had been receiving treatment for other injuries sustained as a result of prior incidents.

The Court took note of a deposition from 2012, in which the plaintiff testified to several injuries related to an assault. Many of the injuries about which he complained after the vehicle accident were similar to those he sustained in the assault. In addition, he continued to take pain medication for injuries related to the assault, attended monthly pain management treatments, and had not returned to work since the incident. The court also looked at injuries that the plaintiff sustained as a result of an automobile accident that happened more than ten years ago and found that some of his current complaints were related to that earlier accident.

Relying on case law precedent and applying Insurance Law §5102(d), which requires that injuries must be causally connected to the accident, the Court found that the evidence of causation was speculative "at best." See Vidor v. Davila, 37 AD3d 826, 826-27 [2nd Dept. 2007]. Because the plaintiff did not demonstrate, in opposition to the defendant's prima facie showing of entitlement to summary judgment, that his injuries were related to the 2013 vehicle accident, the Court dismissed the complaint.

To read the full decision, click here.

 

December 9, 2015

Montfort, Healy, McGuire & Salley Recently Won Appeal Based on the Doctrine of Res Judicata

Albanez v. Charles (2015 NY Slip Op 08795)

In a recent case, Donald S. Neumann, Jr. of Montfort, Healy, McGuire & Salley successfully represented a client at the Appellate Division, Second Department. The appeal concerned recovery of damages in a personal injury action, as ordered by the Supreme Court. Mr. Neumann represented the defendant/respondent for whom he secured judgment on the ground of res judicata.

Res judicata is a legal doctrine that bars a claim in a subsequent litigation action if it was already raised or could have been raised previously. To prevail in precluding a claim based on this doctrine, a party must prove that the "successive litigation [is] based on the same transaction or series of transactions [in that] (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was." See Matter of People v. Applied Card Sys., Inc., 11 NY3d 105, 122.

In a separate declaratory judgment action, a default judgment had been rendered declaring that the alleged "accident" in question was a collision that was intentionally, rather than negligently, caused.

In this case, the plaintiffs sought recovery for personal injuries allegedly sustained as a result of the collision.

Although the Supreme Court held that the action brought by the plaintiff was barred based on collateral estoppel (issue preclusion), the Appellate Division affirmed the order on the alternate theory of res judicata. The Second Department held that both elements for res judicata were satisfied in that the Supreme Court had already determined the claim was barred and both parties had been named as defendants in the declaratory judgment action.

To read the full case, click here.

 

September 2, 2015

Montfort, Healy, McGuire & Salley Secure Victory for Design Architect at the Appellate Division, Second Department

American Sec. Ins. Co. v. Church of God of St. Albans (2015 NY Slip Op 06699)

Partners Donald S. Neumann, Jr. and Michael A. Baranowicz of Montfort, Healy, McGuire & Salley recently secured a victory in the Appellate Division, Second Judicial Department for a design architect who was hired for a church building project in Queens. The project entailed demolishing a pre-existing building and constructing a new two story building on the site. Part of the construction plans also included an excavation that extended to the adjacent property.

The excavation caused the adjoining building to become unstable and at risk of collapse, which led the New York City Department of Buildings to issue a Full Vacate Order. The owners of the adjacent property brought suit against both the design architect and the construction company that performed the work to recover for the damage to their property. The suit alleged common law negligence, breach of contract, and violations of several recently amended sections of the Administrative Code of the City of New York.

The court found that the language of Administrative Code §28-3309.4 imposes "absolute liability upon the 'person who causes' an excavation to be made." However, the court also found that the design architect was not the individual who actually caused the excavation because he neither made the decision to do so, nor did he carry out the physical work. Therefore, he was able to make a prima facie showing that he was free from liability.

The court reasoned that, although the design architect was involved in the discussions regarding the "means and methods to be employed in the excavation," his contractual obligations relieved him from responsibility for the way in which the excavation was carried out. Additionally, his contractual obligations stated he was "not responsible for... safety precautions taken in connection with the work."

Accordingly, the Appellate Division reversed the motion court's order, and held that the motion court erred when it refused to grant summary judgment in favor of the design architect and dismiss the complaint against him.

To read the full case, click here.

 

August 22, 2015

Montfort, Healy, McGuire & Salley Successfully defends an Insurance Adjuster in federal court against a § 1983 Claim

Fiore v. Rivera 2015 WL 5007938

Recently, James M. Murphy of Montfort, Healy, McGuire & Salley LLP successfully represented an insurance adjuster in a case that was commenced in the United States District Court for the Eastern District. The client was a defendant in a claim that arose as a result of alleged false arrest and malicious prosecution.

The suit concerned the plaintiff's arrest on a charge of grand larceny that resulted from a dispute concerning the costs of car repair services, which the plaintiff performed. After the individual who owned the car asserted that no service work had been performed on the vehicle, the owner claimed that he attempted to retrieve the money he had spent on the repairs from the plaintiff. When the alleged attempt failed, the owner of the car filed a criminal complaint with the police. The plaintiff was ultimately arrested on charges of grand larceny and falsifying business records.

After the plaintiff's acquittal, the car owner filed a complaint with the New York State Department of Motor Vehicles. At the hearing, the administrative law judge imposed civil monetary penalties and revoked the plaintiff's repair shop license.

The plaintiff then filed an action against the Suffolk County Police Department under 42 U.S.C. § 1983 on the grounds of false arrest and malicious prosecution in violation of the Fourth amendment. Additionally, he commenced an action against the car owners and the insurance adjuster, asserting malicious prosecution.

The insurance adjuster filed a motion to dismiss for failure to state a claim. The Court agreed with the defendants and dismissed the plaintiff's motion because, in order to state a § 1983 action, the entity accused must have acted under the color of law, which is not generally an applicable assertion against a private citizen, unless that citizen acted in concert with the government to deprive the plaintiff of constitutional rights. The court found that even if the two non-county defendants did make false comments or statements concerning the plaintiff's repair business, it did not rise to the level necessary to constitute state action.

Additionally, the court found that the plaintiff was not collaterally estopped from asserting a lack of probable cause. However, it also found that the complaint did not sufficiently allege probable cause under the plausibility standard.

Claims against all defendants in the case were dismissed without prejudice.

To read the full case, click here.

 

July 24, 2015

Montfort, Healy, McGuire & Salley LLP Successful in Appeal Concerning Car Accident Liability

Gavrilova v. Stark (2015 NY Slip Op 05153)

Montfort, Healy, McGuire & Salley LLP was recently successful in securing a victory at the Appellate Division, Second Department on behalf of a third-party defendant in a three-car accident. Partner Donald S. Neumann, Jr. and Senior Associate Robert J. Pape, Jr. represented the third-party defendant, who had been impleaded by the driver of the third vehicle.

The appeal was from an order of the Kings County Supreme Court that granted the third-party defendant's motion for summary judgment to dismiss the complaint. The appellate court upheld the decision of the trial court, ruling that the third-party defendant's motion for summary judgment dismissing the complaint on the issue of liability was properly granted.

The case concerned a three-car accident that happened after the third-party defendant — the first car in line — had stopped due to an emergency vehicle on a cross street that passed by with its lights and siren in operation. Subsequently, the two following cars each collided into the car in front of them. The plaintiff in the case was a passenger in the second vehicle.

The Kings County Supreme Court granted summary judgment to both the operator of the first car in line - the third-party defendant - and to the operator of the second car in line. The operator of the last car in line claimed that the accident was caused when the third-party defendant the first car- stopped short. The Appellate Division, Second Department reversed the grant of summary judgment to the second car in line, but held that the third-party defendant, represented by the firm, was not at fault for the collision because she obeyed the New York Vehicle and Traffic Law provision that requires drivers to yield the right of way to emergency vehicles.

More commonly known as the "Move Over Law," NY VTL 1144-a makes it a serious traffic infraction to fail to exercise due care to avoid collision with emergency vehicles driving with their lights and sirens on.

Click here to read the court's full decision.

 

April 23, 2015

Montfort, Healy, McGuire & Salley Successfully Represents a Major Area Hospital

Luna v. Spadafora (2015 NY Slip Op 03134)

Our partner, Michael J. Boranian, who heads the medical malpractice department at Montfort, Healy, McGuire & Salley LLP, was recently successful in the defense of an action brought against a major area hospital. Mr. Boranian represented the hospital both at trial in the Suffolk County Supreme Court and in the Appellate Division, Second Department, which last week affirmed the trial court's dismissal of the complaint.

The case concerned a cancer patient who asserted that the hospital should be held vicariously liable for the alleged negligence of her private treating physician. The plaintiff alleged that, due to a negligent delay in diagnosing her condition, the cancer spread, her chance of cure was diminished and she was forced to undergo more extensive surgery than would have been the case had the diagnosis been timely made. The trial court ruled that the hospital could not be held vicariously liable for the actions of the private treating physician because his treatment of private patients, such as the plaintiff, was not within the scope of his employment.

The plaintiff attempted to convince the trial court that various contractual provisions and tangential contacts the physician had with the hospital indicated that the hospital had control over the physician's actions when it came to treating patients. Despite these provisions and contacts, the trial court determined, upon essentially undisputed evidence, that the clear language of the contract established that treatment of patients was not within the scope of the employment agreement and, therefore, the hospital could not be held vicariously liable.

On appeal, the Appellate Division, Second Department affirmed, holding that the complaint against the hospital was properly dismissed.

Click here to read the court's full decision.

 

April 16, 2015

Christopher Cafaro Elected to Federation of Defense & Corporate Counsel

Christopher Cafaro, a partner with the firm, has been elected as a member of the Federation of Defense & Corporate Counsel (FDCC). The group's Board of Directors elected Mr. Cafaro based upon the recommendation of its Admissions Committee.

FDCC is composed of recognized leaders in the legal community who have achieved professional distinction and is dedicated to promoting knowledge, fellowship and professionalism of its members as they pursue the course of a balanced justice system and represent those in need of a defense in civil lawsuits.

Click here to read Christopher Cafaro's Bio.

 

March 25, 2015

Montfort, Healy, McGuire & Salley Of Counsel in Groundbreaking Legal Decision

Montfort, Healy, McGuire & Salley LLP were of counsel to a police officer's widow in a recent Eastern District decision of first impression in her favor. This is the first case in which it was decided that a retired police officer at the scene of a crime shouting "gun" assumed a duty and therefore, could be held liable for negligence.

The case concerned an action brought by a plainclothes Nassau County Police Officer's widow for the wrongful death of her husband who was shot by friendly fire while responding to an incident involving a dangerous emotionally disturbed person. Police were responding to a call regarding a young man who was walking through the neighborhood of Massapequa Park with knives in both hands and appeared to be threatening to the safety of the public. At the scene, the young man was shot when he approached police officers with the weapons.

MTA officers patrolling the neighborhood at the time proceeded to the scene to offer assistance after hearing the call over their radio. Also at the scene was a retired New York City police officer. When two members of the Nassau County Police department SWAT team arrived in plain clothes with rifles, the retired officer shouted "gun," and an MTA officer fatally shot one of the plainclothes officers.

The officer's widow raised claims against the MTA for excessive use of force and liability for failure to train; against the retired police officer for negligence; as also stated a claim against the suspect's parents on the theory that they owed a duty of care to the slain officer. The court held that the suspect's parents did not owe a duty to the plainclothes officer, but found issues of fact that precluded summary judgment as to the excessive force claim and as to the cause of action against the retired officer. The Eastern District concluded that the retired officer created a duty of care when he shouted "gun!" He should have foreseen the risk of shooting that was created when he negligently interfered with police action and negligently misidentified a plainclothes officer.

Click here to read the court's full decision.

 

February 19, 2015

Montfort, Healy, McGuire & Salley LLP Secure Another Victory in Appellate court of Workers' Comp Case

Fid. & Guar. Ins. Co. v DiGiacomo, 18236/10, 2015 WL 447572 [2d Dept Feb. 4, 2015]

Montfort, Healy, McGuire & Salley LLP recently secured another victory in Appellate Division, Second Department. The case concerned an appeal from an order of the Supreme Court, Suffolk County, which denied a workers' compensation carrier's motion for summary judgment awarding it the sum of $123, 442.47, the net lien on benefits paid to a claimant.

Background

The claimant, an employee of a home furnishing and appliance store, was injured on the job while loading merchandise into a freight elevator. His employer's compensation carrier paid more than $189,000 in benefits.

Procedural Posture

In 2005, claimant commenced a third-party action to recover damages for injuries incurred from the accident. In response, carrier asserted a continuing lien on any recovery received from the third-party action. In 2009, the action was settled for $2,050,000. The claimant notified the carrier of the settlement and requested a copy of the workers' compensation lien in writing. The carrier responded to the letter 5 months later, demanding full payment of the $123, 442.47 lien. In 2010, carrier commenced an action to recover the lien. The carrier argued that Workers' Compensation Law Section 29(5) required the claimant to obtain its consent to or judicial approval of the settlement. In response, the claimant argued that the carrier unreasonably refused to consent to the settlement.

Appellate Division, Second Department Decision

The carrier moved for summary judgment, seeking an award of the net amount of the lien, $123,442.47. The claimant cross-moved for judicial approval of the settlement, arguing that judicial approval was not required because the settlement greatly exceeded the Workers' Compensation benefits paid. The claimant also argued that the delay resulted from an earlier unopposed grant of approval, which was later vacated, and the Workers' Compensation carrier was not prejudiced by the delay. Counsel for the claimant argued further that the claimant could not receive a permanent partial disability (PPD) classification from the Workers' Compensation Board until the settlement was approved, and summary judgment with regard to the lien was premature because a PPD classification would affect the amount of the lien.

The Appellate Division, Second Department, observed that section 29(5) was enacted to protect a compensation carrier from paying a deficiency between the amount of a settlement and benefits paid to an injured party. The Court determined that, although section 29(5) required consent from the insurance carrier, that provision was later amended to allow for judicial approval where consent could not be obtained.

With regard to the claimant's contention that section 29(5) approval was not required where the amount of Workers' Compensation benefits received is less than the amount of the settlement, the Court determined that where the settlement constitutes 100% of the policy limits, approval pursuant to section 29(5) is required in order for the claimant to continue to receive Workers' compensation benefits in the future. The Court further stated, "Any settlement is potentially less than the benefits provided by the Workers' Compensation Law, especially where the claimant is seeking a [PPD] classification from the Workers' Compensation Board, which could mean that [claimant] would be entitled to benefits indefinitely."

The Court found that a judicial order may be obtained nunc pro tunc (retroactively), if three conditions are met: First, the amount of the settlement is reasonable; Second, the delay in seeking the judicial approval was not caused by the claimant's own fault; and Third, the insurance carrier was not prejudiced by the delay. The Court found that the settlement was reasonable; found no indication of prejudice to the carrier; and determined that the delay was adequately explained. The Court further found that the lower court properly exercised its discretion when it granted the approval of the settlement.

However, the Court also determined that compensation carrier was entitled to summary judgment in the amount of $123, 442. 47 because it established its entitlement to judgment as a matter of law. The Court also determined that the claim of future PPD benefits was speculative and did not affect compensation carrier's ability to recover the lien amount.

Click here to read the court's full decision.

 

January 26, 2015

Firm Successfully Defends in Staged Loss Case

Liberty Mut. Ins. Co. v Young, 124 AD3d 663 [2d Dept 2015]

Montfort, Healy, McGuire & Salley, LLP, recently secured a victory on behalf of the insurer it represented in the Supreme Court of the State of New York Appellate Division, Second Judicial Department.

The case concerned a 2009 accident in which a vehicle occupied by a driver and two passengers was allegedly was struck in the rear by another vehicle, whose driver was insured. The driver and the passengers of the struck vehicle filed claims with the driver's carrier, which disclaimed coverage on the ground that the contact between the vehicles resulted from an intentional act.

The driver of the struck vehicle then filed an uninsured motorist claim with her own insurance carrier, which commenced a proceeding to stay arbitration. At the Framed Issue Hearing, evidence was presented on issues raised in the underlying Petition to Stay. The issue for the Supreme Court to adjudicate was whether the disclaimer of coverage was proper. The Supreme Court concluded that it was not because the carrier had not met its prima facie burden to establish that the accident was a "staged loss." The Supreme Court, therefore, granted the petition for a permanent stay of arbitration and directed the client to provide liability coverage to its insured.

On appeal, the Second Department found that strong circumstantial evidence had been presented at the hearing sufficient to establish the accident at issue was staged. The Second Department further found that the Supreme Court wrongly directed its focus on whether or not photographs showed damage to the striking vehicle rather than on the totality of the circumstantial evidence. Because the unrebutted circumstantial evidence established, prima facie, that the collision had been staged, the Second Department found the incident was not covered under the striking vehicle's policy and confirmed its prior holdings that "A deliberate collision by an insured is not a covered event under an insurance policy." Accordingly, the Second Department found that the Supreme Court erred in granting the petition for a permanent stay of arbitration.

Click here to read the court's full decision.

 

January 9, 2015

Intentional Acts and Uninsured Motorist Coverage

Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2d Dept 2014]

Can an automobile carrier disclaim liability coverage for injuries sustained by an innocent passenger if the accident is determined to have been intentionally caused?

Montfort, Healy, McGuire & Salley LLP recently secured another victory in the Appellate Division, Second Judicial Department. The case involved an appeal by an insurance carrier from an order of the New York Supreme Court, which directed the carrier to provide liability coverage under its policy for injuries sustained by a passenger in an alleged staged collision.

The claimant alleged he was injured while riding as a passenger in a vehicle operated by nonparty driver. The vehicle in which he was traveling sideswiped a vehicle owned and operated by an individual who was insured by the insurance carrier. The injured passenger asserted a liability claim against the carrier's insured. The insurance carrier disclaimed on the ground that the collision was staged, and thus was the result of an intentional act and not an accident.

The injured passenger then sought arbitration under the uninsured motorist provision of the policy of the driver, which was issued by Nationwide General Insurance Company. Nationwide commenced a proceeding to permanently stay the arbitration on the ground that the insurance carrier was required to provide liability coverage for the innocent passenger's injuries, and thus the driver was not "uninsured."

The arbitration was temporarily stayed pending a hearing. After several conferences, a hearing date was set.

Instead of conducting the hearing on that date, however, the referee granted Nationwide's request to permanently stay the arbitration - without a hearing - based on her determination that the insurance carrier did not intend to prove that the injured passenger was complicit in staging the alleged accident as part of a fraudulent scheme.

On appeal, Appellate Division, Second Judicial Department disagreed with the referee's decision. It held that, if the insurance carrier were able prove that the collision was staged, then there would be no liability coverage under its policy. The insurance carrier was not required to submit evidence as to whether the injured passenger was involved in staging the collision. The Second Department reversed the court referee's order and remitted the matter to the Supreme Court, Kings County for a hearing.

Click here to read the court's full decision.

 

December 18, 2014

In The Matter of Government Employees Ins. Co. v Johnson

Govt. Employees Ins. Co. v Johnson, 123 AD3d 711 [2d Dept 2014]

Does a provision excluding uninsured motorist coverage liability to any person insured for uninsured motor vehicle coverage under another vehicle policy have effect in the state of New York?

Recently, Montfort, Healy, McGuire & Salley LLP, secured a victory in the Supreme Court of the State of New York Appellate Division, Second Judicial Department.

The case concerned an appeal by Government Employees Insurance Company (GEICO) from an order of the New York Supreme Court, which denied a petition to permanently stay arbitration of a claim for uninsured motorist benefits.

Specifically, the respondent was involved in a motor vehicle accident in which the car he was operating was struck by another vehicle. The vehicle that respondent was driving was owned by his sister, an Ohio resident, and was insured by a State Farm Mutual Automobile Insurance Company issued in Ohio. While the policy provided for uninsured motorist coverage, it excluded coverage to any individual who was insured for uninsured motor vehicle coverage through another policy, an exclusion that is permissible under Ohio law.

After the accident, respondent made a claim for uninsured motorist benefits in New York under State Farm's Ohio policy. State Farm disclaimed coverage on the ground that respondent had uninsured motor vehicle coverage under another policy that was issued by GEICO in New York.

Respondent then sought arbitration under the uninsured motorist endorsement of his GEICO policy. Pursuant to CPLR Article 75, GEICO petitioned for a permanent stay on the basis that State Farm was the primary insurer. GEICO argued that State Farm's exclusion of uninsured motorist coverage to individuals covered by another policy was not valid under New York Law. The Court Attorney Referee disagreed and denied the petition.

On appeal, the Appellate Division, Second Department reversed the Referee's denial of the petition. The Court stated that Insurance Law § 3420(f)(1) required that every automobile insurance policy contain an uninsured motor vehicle endorsement. Because the attempted exclusion was not permitted under New York law, the Court concluded it should not be given effect. Accordingly, the Court granted GEICO's petition to permanently stay the arbitration.

Click here to read the court's full decision.

 

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